Evidence

• Publication year: 2018

Evidence

W. Randall Bassett

Val Leppert

Harris K. Howard

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Evidence

by W. Randall Bassett^*

Val Leppert^**

and Harris K. Howard^***

I. Introduction

The United States Court of Appeals for the Eleventh Circuit's 2017 term¹ included important precedential opinions on a number of evidence topics. For example, in three published cases, the court again followed its trend of deferring to trial courts on the use of expert testimony, affirming all three in published opinions.² The court also considered the interplay between a defendant's Sixth Amendment right to an effective cross-examination and the United States District Court for the Southern District of Florida's authority to limit the scope of cross-examination.³

The court offered few significant opinions regarding the Fifth Amendment right against self-incrimination. However, in two unpublished opinions the court considered the unique realities law enforcement officers encounter while protecting the public. One case considered pre-Miranda questioning during a traffic stop where the

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officer personally knew the suspect,⁴ and the second case considered whether a defendant's pre-Miranda statement made after a high-stakes arrest could be offered at sentencing.⁵

The Eleventh Circuit also issued two published opinions addressing the Federal Rules of Evidence's prohibition on character evidence. In one case involving a defendant's prosecution for healthcare fraud, the Eleventh Circuit held that evidence of prior communications with an informant, which implicated violent behavior, were properly before the jury.⁶ In another case, the court held that, under Rule 404(b),⁷ evidence of "structuring" deposits in a tax fraud case was properly admitted.⁸ This Survey of the Eleventh Circuit's 2017 opinions on evidentiary issues provides a concise summary of all of these rulings and provides the practitioner with a succinct overview of the most important evidence rulings.

II. Expert Testimony

Federal courts assess the admissibility of expert opinion testimony under Rule 702 of the Federal Rules of Evidence.⁹ Pursuant to that rule, the proponent of the evidence bears the burden of showing that (1) the expert is qualified to testify competently regarding the matters the expert intends to address; (2) the methodology by which the expert reaches the expert's conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.¹⁰ Interpreting Rule 702 in the seminal case of Daubert v. Merrell Dow Pharmaceuticals,¹¹ the Supreme Court of the United States emphasized that district courts must perform a "gatekeeping" function before they can admit expert testimony.¹² Given that an expert's opinion "can be both powerful and quite misleading because of the difficulty in evaluating it,"¹³ district court judges must

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"conduct an exacting analysis of the foundations of expert opinions"¹⁴ to ensure "that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."¹⁵

In performing the Rule 702 gatekeeping function, district court judges enjoy "considerable leeway,"¹⁶ which means that appellate courts apply the abuse of discretion standard and can reverse only when the ruling is "manifestly erroneous."¹⁷ As outlined in the 2016 Survey, the Eleventh Circuit has generally applied this deferential standard of review, affirming over seventy percent of all Daubert rulings since the beginning of this decade.¹⁸ It is worth noting that the court has affirmed every ruling admitting expert evidence over a Daubert objection in the last seven years.¹⁹ All six cases reversing a Daubert ruling since 2010 involved the lower court's exclusion of expert evidence.²⁰ In all six of those cases, the lower courts had excluded a plaintiff's key expert testimony, resulting in either a summary judgment²¹ or a jury verdict for the defendant.²² The Eleventh Circuit's 2017 term saw few cases that hinged entirely on expert testimony, however, the term was notable in that the Eleventh Circuit affirmed all Daubert rulings in opinions that were published.²³

In Knight v. Miami-Dade County,²⁴ a victim of a police shooting and the estate of a second victim brought an action under 42 U.S.C. § 1983²⁵ against the police officers and detectives, a county, and its police

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department. The plaintiffs brought claims for alleged excessive use of force, coercive interrogation, and assault and battery. On the night of November 12, 2007, two police officers with the Miami-Dade Police Department attempted to stop an SUV for purportedly running a red light. The SUV did not stop, and instead, continued to drive several blocks around the city, eventually stopping at a dead end. The police pursued and parked their car behind the SUV, turned on their spotlight, exited their vehicle, and ordered plaintiffs to exit the SUV. The two officers then approached the vehicle, one from the driver's side, and the other from the passenger's side. The accounts of the officers and lone surviving victim varied drastically. According to the officers, after approaching the vehicle, the driver rotated the steering wheel clockwise and quickly reversed, forcing the officer on the driver's side to move to avoid the SUV. In response to the vehicle moving, the officers began shooting into the vehicle, killing the driver and front seat passenger, and seriously wounding the remaining passenger in the back seat. The surviving victim's recollection was distinct in that she recalled hearing a "clink" followed by a shot aimed at the driver of the SUV before it accelerated backwards. On remand, after an unpublished decision from the Eleventh Circuit, the trial court made several rulings regarding the admissibility of expert witness testimony that were the subject of appeal.²⁶

The defendants' police-practices expert, W. Kenneth Katsaris, was called upon to rebut the plaintiffs' police-practices expert. Katsaris testified that the officers "acted reasonabl[y] and in accordance with what is recognized as training throughout the country."²⁷ Both parties moved to exclude the expert testimony entirely.²⁸ The district court denied both motions, but placed limits on the scope of questions at trial.²⁹ In particular, the court ruled that the "experts could not be questioned on 'the constitutionality of the Miami-Dade Police Department's policies' or on 'any ballistics, bullet projectile, or accident reconstruction issues,' and that they could not 'testify, reference, or analyze any case law before the jury.'"⁸⁰

On appeal, the Eleventh Circuit affirmed, holding that there was "no error (let alone a clear error of judgment) in permitting Katsaris to testify."³¹ As to the plaintiffs' first challenge, that Katsaris's opinions

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were not grounded in reliable principles and methods, the Eleventh Circuit found that he adequately considered the evidence in the file, statements from officers and those present, visited the scene of the crime before giving his testimony, and reviewed how the incident occurred.³² The Eleventh Circuit concluded that there was no abuse of discretion concluding that the opinion was based on "sufficiently reliable and grounded on sound principles and methods."³³ The plaintiffs also contended on appeal that Katsaris's testimony was inadmissible because he relied on hearsay statements to inform his opinion.³⁴ The Eleventh Circuit concluded that "[t]his evidence is precisely the kind reasonably relied on by experts in the field, and the trial court did not abuse its discretion in allowing the expert's testimony."³⁵ The plaintiffs also challenged Katsaris's consideration of testimony from the sole surviving plaintiff regarding the deceased driver's refusal to put the SUV in park.³⁶ This informed Katsaris's opinion that the deceased driver deliberately backed into the officers, which created a reasonable basis for the use of deadly force.³⁷ The Eleventh Circuit concluded that the statements were properly relied upon because these statements were used to corroborate the defendants' statements, and that the plaintiffs had an opportunity to challenge Katsaris's statements, and thus, affirmed the district court.³⁸

In another published opinion from the 2017 term, Bobo v. Tennessee Valley Authority,³⁹ the plaintiff brought an action against the Tennessee Valley Authority (TVA) and eight other defendants based upon her exposure to asbestos. The plaintiff alleged that her eventual diagnosis with mesothelioma was the result of cleaning her husband's clothing who was an employee of the TVA from 1975-1997. The plaintiff brought claims for, among other things, strict liability, premises liability, negligence, breach of warranty, and conspiracy. During the proceedings, the plaintiff passed away and the United States District Court for the Northern District of Alabama substituted her daughters as representatives of her estate. The court dismissed several claims, but allowed the case to proceed to trial on a claim of negligence. After a bench trial, the district court ruled in favor of the plaintiff on negligence

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grounds for nearly $3.4 million dollars.⁴⁰ The Eleventh Circuit affirmed the district court's acceptance of plaintiff's expert on the proximate cause of the plaintiff's illness.⁴¹ The Eleventh Circuit concluded that the defendants mischaracterized the expert's explanation of asbestos exposure as concluding that "any exposure" could lead to mesothelioma which conflicted with the expert's testimony that "significant exposures" to asbestos led to the illness.⁴² The Eleventh Circuit affirmed the district court's conclusion that the expert's opinion was also based on an "extensive knowledge of the facts in this...